Sheep's Clothing?

These days, even the Old Guard supports "ethics reform' " and that should make everyone suspicious.

If anyone can change the culture of corruption in Louisiana, it is the state's newly elected, 36-year-old, Rhodes-Scholar governor, Bobby Jindal. Still, history is not on his side. Louisiana has elected a number of 'reform governors," but never to a second term. Some attribute Louisiana's corruption to its unique cultural mix: the French and Spanish colonial past; the Latin, Catholic population of south Louisiana; and the state's different legal system (where the private law is based on Roman civil law, rather than the common law). Whatever the role of culture, however, Governor-elect Jindal cannot change the state's history, demographics or even its private law system.

Mr. Jindal's solution for ending corruption is 'ethics reform." He and business groups want Louisiana to rank among the top states for tough ethics laws. To do that, Louisiana will have to enact legislation that satisfies the criteria of the groups that create such rankings. Unfortunately, that means satisfying the criteria of left-wing organizations such as The Center for Public Integrity.

Public Integrity's list of donors and projects leaves no doubt about its agenda. There is certainly nothing wrong with left-wing foundations funding nonprofit organizations and projects with the same ideological outlook. Conservative foundations do likewise. Usually, however, conservative nonprofit organizations candidly identify their ideological bent, e.g. the Federalist Society, which proudly describes itself as a group of conservative and libertarian lawyers.

The problem for a conservative such as Jindal is that the 'ethics reform" banner has been captured by the Left, but marketed as 'nonpartisan." Whereas media reports identify conservative organizations no matter what the issue, The Center for Public Integrity proudly advertises that major media outlets take positions based on their 'nonpartisan" studies. Moreover, there simply are no comparable 'nonpartisan" groups on the right. Even the Ethics and Public Policy Center has not focused on the 'ethics reform" issues central to Jindal's campaign.

Ethics reform in Louisiana and elsewhere occurs within the same paradigm of 'independence" as that of the post-Watergate 'ethics reforms" at the federal level as well as in many states. That approach is responsible for the legislation fraudulently labeled 'The Ethics in Government Act," which created the infamous independent counsel statute.

'Ethics reform" assumes the desirability of 'independence" from politics. As explained in the Federalist Papers, this is a utopian notion rejected in the drafting of our federal Constitution. As James Madison famously explained therein, our system seeks to control, rather than to eliminate, political factions, i.e. interest groups. The framers, therefore, created a commercial republic in which the power of economic and political factions would be controlled by splitting and checking power through federalism and separation of powers.

Louisiana is not unique in matters of corruption. It could take lessons from Chicago, Philadelphia, Newark, N.J., and Boston. But in Illinois, Pennsylvania, New Jersey and Massachusetts, corruption affects a smaller part of the economy. Even in these blue states, the private sector is stronger than it is in the red state of Louisiana. Simply put, Louisiana has yet to become a commercial republic.

Those who study developing, i.e. Third World, countries have noted that corruption is directly proportional to the percentage of the economy controlled by government. That observation more than anything else explains the level of corruption in Louisiana. Ever since Huey Long, state government has been the most important employer in Louisiana.

Conventional wisdom has it that the governorship of Louisiana is a very powerful one. That belief, however, confuses personal political power, achieved through patronage, with institutional executive power, which is subject to checks and balances. Louisiana's governor has political power of a kind that invites corruption. In many states, the governor has only a small number of political appointees. In Louisiana, the governor apparently has about 3,000 positions to appoint. Many of these are positions on protectionist regulatory bodies.

This vast number of appointees " particularly to boards " facilitates re-election but does not strengthen the governorship as an institution. In actuality, the state constitution violates (while positing) the principle of separation of powers in a number of respects and thereby blurs legislative and executive power. As a result, Louisiana's situation is ideal for strong-willed governors who understand the practical need to ride roughshod over the Legislature in order to accomplish anything. Such a structure of government, however, is particularly inviting to rogues and demagogues.

In many developing countries and in Louisiana, government may be 'strong" in the sense that the scope of its regulation is broad, but weak in the institutional sense. Without a constitution that clearly separates and balances power between the executive and the other branches, government institutions are unavoidably weak. Louisiana's constitution pays homage to the notions of separation of powers and checks and balances, but in truth it falls short on many fronts.

Katrina demonstrated not only the personal political powerlessness of the current governor, Kathleen Blanco, but also the lack of institutional executive power. Institutional weakness, created by a bad constitution, begets incompetent administration. In reaction, it encourages the rise of corrupt politicians who know how to get things done outside of the ineffectual, but constitutionally authorized, system. In the past, many good people would vote for now-imprisoned Gov. Edwin Edwards knowing that he was corrupt, but believing he could get dysfunctional state government to work.

Governor-elect Jindal's acceptance speech warned that changing the system will be difficult. His main opposition will come from the state Senate. Despite term limits, which kicked in at this election, a small group of Edwin Edwards' cronies in the state Senate may determine the outcome of any reforms, ethics or otherwise. They will oppose Jindal's attempt to prevent members of the Legislature from doing business with the state. One of the aspirants for president of the state Senate, for example, collects millions from state government in Medicaid payments to his nursing homes.

The Old Guard in the Legislature may cynically embrace cosmetic, rather than substantive, ethics changes for which Gov. Jindal can claim credit. Indeed, that seems to have been the reality of Louisiana's original, 1964 'ethics reform" " the appearance of reform that actually facilitates greater corruption. That 1964 legislation was, at the time, touted as 'the best in the nation." Anyone familiar with Louisiana's ethics laws knows they were in fact designed to fail. They serve as a political fig leaf in that our ethics system is capable only of catching and punishing jaywalkers, not crooks. So, if next year Louisiana enacts 'the best in the nation" ethics reform, but does so without a fight, you know the bad guys have won again.

Any kind of real reform in Louisiana requires structural changes including, ultimately, a changed state constitution. First, however, citizens have to understand that good government requires not only good leaders, but also good institutions. That means having an understanding of how the structure of state government creates so many opportunities for corruption. Gov. Jindal could lead through example by proposing and explaining the need to eliminate many of the governor's politically appointed, regulatory boards that stifle competition and invite corruption. That would make it much tougher for the Legislature to refuse to forego its own opportunities for corruption.

John S. Baker Jr. teaches constitutional and criminal law at Louisiana State University. Elliott Stonecipher is a political consultant and pollster based in Shreveport.

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Bobby Jindal may be able to change the culture of corruption in Louisiana, but no reform governor has ever lasted more than one term in this state.